New York State Revises Sexual Harassment Prevention Guidance

​New York state recently updated its sexual harassment prevention model policy and training requirements, which employers will need to incorporate into their handbooks and communication with employees.

The new guidance:

• Notes that harassment does not need to be "severe or pervasive" to be illegal in New York.
• Adds more examples of sexual harassment, discrimination and retaliation, including circumstances in which sexual harassment can occur while working remotely.
• Adds a section on bystander intervention and provides tools and methods that can be used when an employee witnesses discrimination or harassment.
• Adds language regarding gender diversity and gender-based harassment and discrimination, which can include gender stereotyping and treating employees differently because they identify as cisgender, transgender or nonbinary.
• Provides emphasis and guidance on supervisors' and managers' responsibility to report harassment and discrimination.
• Explains that harmless intent is not a defense for harassment and discrimination, and that the impact of the behavior on a person is what counts.
• Adds information regarding the New York State Division of Human Rights' sexual harassment hotline.
  

New York's law is stricter than federal law, which holds that harassment must be severe or pervasive to be considered illegal.

Be aware that sexual harassment can occur in texts, e-mails and Zoom meetings, said Carol Goodman, an attorney with Herrick Feinstein in New York City.

The model policy offers some tips for bystanders who witness harassment in the workplace. They could interrupt and distract the harasser, ask a third party to intervene, take notes to benefit a future investigation, or check in with the person who was harassed after the incident.

Address Corporate Culture

Emphasize your company's core values, such as respect and accountability, because "values are a part of what drives culture change. Culture change is what ultimately reduces the behaviors that drive the need for the laws," said Stephen Paskoff, CEO of ELI, a workforce training company in Atlanta. 

When sexual harassment occurs repeatedly, the problem isn't that people didn't know the behavior was wrong.

"People either didn't care or they saw others doing it with impunity, and [workers] were afraid to speak up or they were ignored when they did," Paskoff said. Sometimes the big moneymakers and powerful figures "do what they want, and they just don't care. You have a systemic, cultural issue where people are not following the [corporate] standards."

That's why it's important to impose consequences on anyone who violates a company's anti-harassment policy, regardless of whether they are powerful or lucrative employees, Paskoff said.

Every employee needs to understand how sexual harassment can hurt business operations, productivity, recruitment and retention, Paskoff said. "We might not get the best talent. We might not have people that we hire fully engaged," or they might not present their best ideas because they don't want to be dismissed or embarrassed in front of others, he explained.

Anti-Harassment Training

New York State law requires that employers conduct anti-harassment training for all employees each year.

New York's minimum standards require that anti-harassment training be interactive and include examples of conduct that would constitute unlawful sexual harassment. New York employers must provide workers with a copy of the company's anti-harassment policy and a copy of the information presented at the training.

Training should incorporate real-world examples that are specific to the company's work environment or industry. "By having relevant examples and an interactive dialogue, employees will develop a greater awareness of what is and is not appropriate in the workplace, how bystander intervention works, and when an employee is obligated to report a violation of the policy," Goodman said.

The training should be "short, clear and specific," Paskoff said. "The issue is not simply delivering information. You've got to do it in a way that matters to participants. You've got to make sure this is continually done, and you repeat it." The goal is to prevent harassment and address problematic behavior before it rises to the level of being illegal.

"Companies should not approach training as checking the box to comply with the law. The company must make it known that management, at the highest levels, is committed to a discrimination-free work environment," Goodman said.

Going forward, New York employers should review their anti-harassment policies, whether that is part of their employee handbook or part of a state supplement, and make sure the changes in the model policy are reflected, said Nancy Gunzenhauser Popper, an attorney with Epstein Becker Green in New York City.